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Et Tu, New York? Couple Files LGBTQ+ IVF Discrimination Complaint Against Big Apple

Despite the law explicating prohibiting discrimination on the basis of sexual orientation, New York City denies fertility coverage to gay men. An EEOC complaint seeks to change that.

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Gay Pride NYCAs we all know, it’s hard to be an attorney. Most of us have mountains of college and law school debt, as well as high hopes to one day dig out of that financial black hole. We also have dreams of enjoying our careers, and maybe, just maybe, enjoying the human experience of becoming parents.

When Corey Briskin took a job with the New York County District Attorney’s Office in 2017, the pay wasn’t the greatest. It was peanuts compared to his Biglaw colleagues. But the healthcare benefits were amazing: 95% cost coverage. Plus fertility benefits. Including up to three rounds of in vitro fertilization (IVF)! As a gay man, that was important to Briskin. He and his fellow attorney husband, Nicholas Maggipinto, hoped to have children — an expensive feat for a gay couple needing to turn to IVF, egg donation, and surrogacy. While the price tag of all that tends to be in the $100K-$200K range, the portion expected to be covered by the policy was a significant chunk of that total.

So yay for the City of New York and awesome health care coverage, right? Not so fast. The city informed Briskin that under its policies, he and his husband, as a gay couple, were not covered. But why?

Defining “Infertility” In Crazy Ways. Part of the issue stems from a traditionally noninclusive definition of “infertility.” Briskin’s insurance policy through the city deemed covered members eligible for IVF services only if they were found to have infertility. That term was defined as the “inability to conceive after twelve (12) months of unprotected intercourse.” Perfect. That should work for Briskin and Maggipinto. No? The plan then went on to interpret “intercourse” to mean specifically between a man and woman. And then it deemed a female without a male partner to be infertile if she unsuccessfully attempted 12 cycles of intrauterine insemination. But there was no exception for two males who couldn’t reproduce the old-fashioned way. Same-sex male couples were thus excluded from coverage.

But Didn’t New York Just Fix This? In February 2021, Gov. Andrew Cuomo announced that the Department of Financial Services had issued guidance requiring health insurers to cover fertility services regardless of sexual orientation or gender identity. OK, now surely this issue was fixed, right?! Briskin reached out to the city’s Office of Labor Relations as well as New York City Corporation Counsel to respectfully point out that the city was in violation of the Department of Financial Services’ clear anti-discrimination directives. His words fell on deaf ears. The city continued to interpret the coverage in a way that excluded Briskin, Maggipinto, and all New York same-sex male couples.

EEOC Complaint. Last week, on April 12, 2022, the couple, through their counsel Peter Romer-Friedman of Gupta Wessler, filed a complaint with the U.S. Equal Employment and Opportunity Commission (EEOC) seeking a finding that the city’s fertility coverage policies constitute unlawful sex and sexual orientation discrimination. Check out the 191-page complaint here (the charge itself is a very readable six pages and then includes substantial informative exhibits).

Didn’t The Supreme Court Already Address This? In Bostock, back in 2020, the Supreme Court held that Title VII of the Civil Rights Act prevents discrimination against employees based on sexual orientation. (There, Justice Gorsuch held that it counted as sex discrimination for an employee to be fired due to his participation on a gay softball league.) The complaint seeks to establish that this isn’t just a New York City issue, but that the highest court in the nation has spoken, and companies, as well as municipalities, must end unlawful sex- and sexual orientation-based classifications. The complaint argues that the city’s discriminatory policy “revives the misconception, grounded in uninformed and biased stereotypes, that same-sex male couples are not fit to build families while different-sex and same-sex female couples are fit to do so.” We expect more from you, New York.

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The Cause. I had the opportunity to connect with Briskin, Maggipinto, and their attorney Romer-Friedman. Briskin and Maggipinto explained that this legal action is first and foremost about their desire to have a family and the city’s discriminatory actions causing unjust financial obstacles in the way of that goal as well as significant delays. But they also explained that at this point if the city were to offer to provide the two of them the fair coverage they were owed, it wouldn’t be enough.

Since their story has gone public, Briskin and Maggipinto have received an outpouring of support as well the countless stories of others that also hit discriminatory obstacles in their family-building attempts. Briskin and Maggipinto’s fight is not just about their own parenthood aspirations, they are fighting for everyone, regardless of whom they love, to have a fair chance of starting the family they want.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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